Some of you may have heard that the Waxman Agency, a legitimate, highly respected literary agency with an excellent reputation, has decided to open an epublishing imprint of its own. No, you didn’t read that incorrectly. It’s an agency deciding to set up a publishing arm.

This has, as you can imagine, sparked a bit of controversy in the literary world.

I’m going to blog about it, because I feel like I should. But I’m not entirely comfortable doing it, to be honest. I don’t like doing it. I am, to put it mildly, in a bit of an moral dilemma here, and I need to decide if my ethical standards are really that strong, and I’ve decided that they are. I’ve taken a stand on this situation in the past and would be a hypocrite not to do the same again; I’ve presented myself–and worked hard to make myself–someone who helps other writers and offers advice, and I would be a hypocrite not to speak out now.

Here’s the thing. Waxman is, as I said above, and excellent agency. I know a few people–one I consider a good friend–who are repped by Holly Root there. Holly is a fantastic agent. Her clients love her, and she does a great job for them. And up until yesterday I had no compunction at all recommending her to any of my friends who were looking for representation.

But I can’t do that anymore, and that makes me sad.

See, there’s this organization called the Association of Author’s Representatives (AAR). They’re basically the professional organization for literary agents; they have strict standards for becoming a member agent, and a Canon of Ethics which is designed to make sure that standards in the industry stay at a certain level, and that authors can query AAR member agents with confidence. This Canon reads in part:

We pledge ourselves to loyal service to our clients’ business and artistic needs. We allow no conflict of interest that would interfere with such service.

and

Member’s compensation for all transactions shall be derived solely from the client. A member who represents a client in the grant of rights in any property owned or controlled by the client may not accept any other form of compensation or other payment from the acquirer of such rights. Members shall not represent both buyer and seller in the same transaction.

In other words, an agent can’t represent both the writer and the publisher in one transaction, and an agency shouldn’t have any sort of conflict of interest, such as would occur when, say, they own the publisher they’re selling their client to.

Now, before we go any further I need to make something extremely clear. There is not a doubt in my mind that the Waxman Literary Agency and all of its member agents are good and decent people who will do their best for their clients. Not a doubt. I don’t think they’re scammers. I don’t think they’re doing this to cheat their clients or other writers. I don’t think this means in any way that they won’t still try to sell their clients’ mss to NY houses as hard and as effectively as they can. Absolutely NOT.

But I still think this is a breach of ethics, and a serious problem, for several reasons.

The first…well, historical romance writer Courtney Milan has already said it quite eloquently. Go read her post. I’ll wait here. She addresses the conflict of interest extremely well, and for me to do so would just be redundant.

But the thing is, as we’ve learned, and and has been discussed in the past here and elsewhere, epublishing is not like “regular” publishing. It’s a specialized industry, with its own rules. Experience and knowledge in print publishing absolutely does not necessarily translate (Quartet Publishing, anyone? Ravenous Romance?) As I’ve said here before, ebook readers tend to stay with particular ebook houses. That may be changing a bit with the advent of the Kindle and the Nook, but the advent of the Kindle and the Nook also mean that readers have a lot more options for ebooks.

In the interview, Mr. Waxman says:

We also have a strong focus on original content whereas it seems that the majority of epublishers are looking for out of print or classic eBook rights.

I have to be honest here; I have no idea what he’s talking about. I don’t even know of any ebook publishers who primarily publish reprints. I do know dozens of ebook publishers who publish new, original content every day, or every other day, or twice a week depending on their release schedule. I’m terribly confused as to how anyone could research the ebook industry and not have seen all of those publishers.

He also says:

I like the opportunity the eBook format presents to the author. There’s a sense of being able to control your own destiny for projects that the big houses don’ t want to bother with. I’ve been at this long enough to trust my own instincts on a book. So, just because a publisher says it’s “too small”, we can now attempt to prove them wrong and still make a go of it.

Which sounds great, and like I said, I honestly believe he thinks he’s doing the absolute best for his clients. But why start up an epublishing imprint, thus creating a conflict of interest and a breach of AAR ethics? Why not submit your clients to an existing epublisher, or small press? Just as there are dozens of established epublishers out there with ready customer bases, there are dozens of established small presses out there, with budgets and distribution and skilled editors and all of those other things. Why not submit to them, if the project isn’t right for NY? Isn’t an agent is supposed to keep trying until the project sells, even if it’s to a smaller house? It’s confusing, and I’m sure it’s simply worded badly in the interview, but I find the whole concept disturbing.

The fact is, this is a newbie epublisher, and as a newbie epublisher the chance that it will fail is something like 60%; the chance that it will actually make good money for its authors is way, way lower. So simply from a business stance, it’s something I would and do warn writers away from. The epublishing world is already crowded. When is the last time a new ehouse opened and became very successful? Samhain is the last one I can think of, and that was in, what, 2006? I know several have opened since then, but none have been really successful; most have closed and those that haven’t sort of limp along in writers-buying-each-others’-books-obscurity.

Which leads me to my last objection, and it’s the big one.

In March 2000, a self-proclaimed “literary agent” named Dorothy Deering was sentenced to 46 months in federal prison for defrauding hundreds of “clients” by, essentially, selling their manuscripts to a “publisher” she owned. (In reality “Sovereign House” was just a front, but the fact remains that she sold her clients–on paper at least–to a vanity press she herself owned, and charged them for the privilege.) You can read a short case study of it here, or buy the (excellent) book about the case, Ten Percent of Nothing by Jim Fisher.

And there have been others, less wealthy and successful, perhaps, but others. There continue to be others. The wonderful folks at Writer Beware keep a running list of them, and of course they’re often discussed in the Bewares, Recommendations, and Background Checks forum at Absolute Write (linked in the sidebar). I’m a moderator at AW and have been a member for years now. And it is absolutely amazing to me, shocking to me, how many scam agents there are out there. Agents who charge reading fees. Agents who charge other fees. Agents who sell their clients to vanity publishers (for, you got it, a fee).

Waxman is NOT a scam. Not, not, not. But when legitimate agencies do things like this, it makes it harder for writers to protect themselves from scams, because it makes it harder for those of us who try to help them.

How? Let me explain. When a scam agency sets itself up, it doesn’t come out and tell people–potential victims–that it’s a scam. The principals make shit up. They lie about sales or claim that information is “confidential.” They tell potential victims that “everyone charges fees.” Or, sometimes, they claim that “lots of agents are publishers too” or “lots of agencies change their own clients to publish” or “lots of authors start in self-publishing,” in order to convince their clients to sign those vanity deals they get kickbacks for. They tell them NO agents can afford to support themselves purely on commission, and that ALL agents have other ways–like starting their own publishers–to bring in cash.

So when a legitimate agency does something like this, it gives extra ammunition to every scammer out there. It’s like manna from Heaven for those who would defraud writers, those who would lie and cheat and steal from them, and sell them dreams plated with cheap fake gold. Now every scam agent out there can point to the Waxman agency, and say, “See? That agency, a big New York agency, tells its clients to self-publish first, and they own the publisher! That’ll be $2000.00, please.”

Of course Waxman isn’t charging its clients to publish with their imprint; I would never presume such a thing and don’t mean to imply it in any way, shape, or form. But the fact remains that they’ve just made it easier for every literary scammer in the world to line their pockets.

Yes, we can still tell writers not to query anyone who charges a fee. Or without disclosed sales (an agent who simply crows about “Made a sale!” without saying to whom is an agent to be avoided, generally; its very easy for a scammer to set up a blog, and indeed the Writer Beware blog has caught several scammers doing just that, including setting up fake blogs for their “clients” to celebrate these nonexistent “sales”).

But an agent who owns a publishing imprint? We can no longer use that as a clear-cut signal that the agent isn’t legitimate and won’t get you real NY sales. And THAT more than anything else makes me feel sad, and ill, and very, very sorry, and I feel terrible about the whole thing.

27 comments to “It’s just upsetting”

This is a conflict of interest, and while Mr. Waxman does know something about agenting and acquiring, he doesn’t know anything about ebooks and ebook publishing.

One of the reasons so many of the ebooks being published *from a technical pov* (I’m not talking about the writing) are crappy is because people without technical skills, typesetting, design or layout skills are doing what’s called a raw dump.

According to the EREC blog, he did run a digital publisher for two years, 2000-2002. I’ve never heard of that house, though, and it seems it closed its door in 02, so I’m not sure what if anything that means.

I’m suffering from an overwhelming sense of disquiet now. My writing partner and I have to revise our list of potential agents to query because of this. I have a ton of respect for Holly Root, but–as Courtney Milan said in her blog post–this is an instant deal breaker. Just…no.

I’m also saddened because the potential conflict of interest isn’t even the only issue I see. If Mr. Waxman thinks most epubs are primarily interested in reprints, he–quite obviously and painfully-has no idea WTF he’s doing.

Apart from the ethical issues – whoa nelly! – the lack of experience and general cluelessness should be a honking big flag. He’s not adding any value at all to an author with a good online network – and isn’t interested to someone who hasn’t (which is really the biggest reason for any author to go to a publisher, other than technical product – to tap into unreached markets). So I’m seeing nothing that sets this guy above the abundance of small and fairly rubbish e and small publishers around the place, and a lot of things which indicate any material subbed to him will languish in obscurity unless the author flogs her arse off. Which, if the author can sell books on her own – why does she need this company and to hand over a large chunk of profits for them to basically typeset?

I’ve been burned by small presses who have no idea at all how to sell good material. Seriously, no track record – no submission. People say wait a year – I’d say that only holds if the principals have experience in the industry. Give this guy at least 2, but the ethical issue should make anyone hesitate for much much longer.

That confused me too, Ann. An author, ebook or otherwise, who already has a large online presence can do better at an existing epub or self-publishing (aside from you, JA Konrath springs immediately to mind).

But you’re exactly right in that for this publisher, the same standards and cautions exist as for any other start-up publisher: wait a year or two, make sure they can really sell books.

What strikes me as a major potential problem is the idea of new authors submitting to this house in hopes it will get them an agent and ultimately NY publication; a conflict of interest in the other direction, as it were.

I’ll ask an obvious question no one els has, that I’ve seen: why would anyone pay an agent 15% to sub to an e-pub? Is the Waxman agency taking 15% for its clients which are publishing through their e-pub? I hope not, because that’d be pretty outrageous.

Even if they did come to their senses and either give up on the e-pub thing or spin it off completely, so there was no business relationship between the agency and the publisher (completely different personnel as well, etc.) but they still thought that there were manuscripts which were best served by a good e-pub, say Samhain, how would they be serving their clients by subbing to Samhain for them? You don’t need an agent to sub to an e-pub; the contracts just aren’t that complex, and the e-pubs don’t even pretend to only look at agented submissions. If an author decides to go the e-pub route, it’s a complete waste of their money to have an agent make the submissions.

There’s just no reason for a literary agency to be involved with an e-pub, whether they own it or not. And I agree with you and everyone else who’s said that the fact Mr. Waxman seems to think that e-pubs are “mostly” publishing reprints demonstrates that he doesn’t know squat about this end of the industry, which gives him and his agency even less reason to be involved. Even if this weren’t a clear conflict of interest, I’d still be unimpressed — these folks aren’t acting in anywhere near their clients’ best interests here, and the fact that the problem seems to be ignorance rather than malice doesn’t make it any less of a problem.

I know a lot of writers who really aren’t crazy about the idea of suddenly having to give up 15% of their smaller epub work, because they arranged to sell that stuff on their own with their agents. I’m not at all saying getting agents involved in those transactions is a bad thing or something that shouldn’t happen, but it is something that gives a lot of writers who supplement their NY earnings with epub stuff pause.

But certainly I’d expect an agency interested in getting their clients into epublishing to submit to established houses first–we all know things are tight in publishing, so I can’t really blame them for needing to supplement their income, but there’s a better way to do it without breaching ethics and potentially harming their authors by not being able to sell ebooks to readers.

This is clear conflict of interest. I don’t understand how the Waxman Agency, which I respect immensely, didn’t see that from the get go.

Are they not going to submit their clients work to their own e-press? I think, perhaps, this wasn’t researched enough—based on Mr. Waxman’s claim that e-presses don’t publish much original material—which makes this a bad business decision as well. Agencies that make bad business decisions make me nervous.

It’s the slush pile aspect that bothers me, Seeley. See my response to Ann above. What is the possibility that a writer who would normally submit their novella to an established, profitable house, might not send it instead to this house where the chances of making money are lower, in hopes that they’ll become agented in the process?

You make a good point I haven’t seen elsewhere. Why *not* submit your clients’ work to an already established epublisher, rather than starting your own? And yes, his lack of epublishing knowledge shines through in his statement regarding reprints. If he’s actually done any research at all, he’ll know there’s very little truth in that statement.

Jill N. Noble – Noble Romance Publishing, LLC, in business 2+ years and walking, not limping, right along. 😉

In this climate, I tend to resist pat answers, like this event or that business ploy is unequivocally a Bad Thing. The economy is in the dumpster, especially for the arts, and diversification is just smart business. The climate it is a changin’ and I believe agenting will change and diminish with time; not a good thing, but I think they’re doing it to themselves. The industry has a long heel-digging history of balking at change, like ePublishing. I also think it’s smart to bank on e-Publishing, because I do think it’s going to comprise a big part of the Future. So in that respect, I’m glad to see agents paying attention to the great things going on in that sector. (He’s not the only one, I just interviewed another High Power Agent on seeking great writers from e-Slushpiles.)

As an e-Publisher and e-Author I know it’s a tough climate no matter where you try to publish– if, that is, you want actual people to pay you actual cash for your writing. I run a teensy ezine, we can’t pay anything like we’d like to, and we still publish less than 2% of our slush. And I don’t see that his ePublishing efforts equal “self-publish”. For all we know, he actually IS interested in great stories that are too risky for the suits in NY, and hopefully he’s interested in paying market rates.

Also, since you don’t need an agent for ePublishing, I think it indicates that he’s trying to stay on the up-and-up with it, to eliminate conflict of interest. If it had been print, I’d feel a little more ick-factor from it. As for combining his efforts, Business-wise, it’s dumb to ignore the power of the name he’s already built.

All that said, he should separate his interests to eliminate any sense of unfair play. I’m shocked he didn’t take that route.

Another thing I thought of, I know in some circles it’s frowned upon to simultaneous submit, but I certainly would when subbing to this particular agent, in that I’d submit to ePubs and other agents alongside submitting to him.

Actually, they are two separate business entities. Diversion Books has it’s own CFO and editorial staff separate from the Waxman Literary Agency. The only real connection between the two is the involvement of Scott Waxman’s publishing industry connections and experience in guiding the direction of the company.

And they do not take a 15% commission on the ebooks. To answer another question, why go with them rather than an already established e-publisher? Simple answer for most authors – the royalty rate is far, far better. And unlike other e-publishers, this house is designed to be a true author-centric place where getting back your rights if you wish to sell them elsewhere isn’t a huge issue.

Would you define "far, far better" better, please? The established houses I know of are paying upwards of 36%. Many are paying in the mid-to-upper 40s. At least 2 pay small advances on royalties (NRP being one).

Umm, what Jill said. Do you mean “far, far better” than what the big New York publishers pay for electronic royalties, or do you actually mean “far, far better” than what the established e-pubs pay? Because I’ll admit the latter would be impressive.

Angie

PS — good to hear they’re not taking an agents’ commission on books they sub to Mr. Waxman’s e-pub. That’d be pretty outrageous, but then again, we’ve all seen newbies to this end of the business make worse mistakes. [wry smile]

Hi Theresa, thanks for commenting! That’s good to know about the CFO and staff; it wasn’t clarified elsewhere at all, so it’s definitely good news.

But the problem is, no matter how good the royalty rate is, that doesn’t guarantee readers will buy the books. Lots of startup epublishers offer great royalty rates, but even if they manage to be so much better than other houses–which as Jill Noble said, generally run around 40% anyway–that doesn’t do anyone any good if they only manage to sell a handful of copies, versus the hundreds or even thousands they might be able to sell at an established house.

I think of course we should always strive for the top, but the market doesn’t always bear even our best efforts. And I do think ePubbing is a great break-in opportunity for writers, which gives it another good reason to submit there. I mean, in really no other industry are you expected to earn like crazy right out of the gate. A time of education, internship, etc is often the norm, whether that be college or through business stewardship.

I view ePublishing as selling short stories. It can help you break in. Regardless of sales numbers it can help get your name out there.

I think this is a response to both JA Konrath’s experiences and to the recent agency/Amazon/ebook hubbub. Clearly publishers are, in many people’s opinions, screwing readers and writers with delayed ebooks, nonexistent ebooks, expensive ebooks, and badly formatted ebooks.

I think the agency is trying to connect ebook readers with authors who could use the sales, but there are, as you pointed out, some big issues.

What I’ve noticed from watching Ravenous Romance is some definite instances of using Perkins’ agent pull to try to solicit writers and writers confusing being published by RR as “being represented by Lori Perkins”. I’ve seen people claim to be her client when they’ve merely been published by RR, which is misleading. Not being on the inside, I’m not sure whether the difference is in the head of the author, or the author is being led on by the press, but it does leave me with a very strong suspicion that Perkins’ rep is being used to keep authors hooked to RR in a way that mirrors author mills.

There’s also a question of just what exactly WON’T RR take? Because I’ve read some pretty awful blurbs, samples and reviews.

I know I’m coming way late to this, and though I think this is a bad idea, I’m also not sure where this has anything to do with the agency’s slush pile. Is the agency going to refer rejected writers to the epublishing arm? (BAD IDEA!) But I haven’t read that anywhere. There is also a lot of discussion in this comment thread about why the agent should take their writer to THIS epublisher vs another epublisher — quite frankly, if I”m looking to epublish, I’m NOT looking for an agent. As is, I do several small-press projects a year and my agent is not involved in ANY OF THEM. (Even though my agent, Deidre Knight, is actually a champion of small and epress.) If I was going to epublish a project, I wouldn’t go looking for an agent, and I doubt highly that an agent would take on a client who they suspect has prospects in the epublishing market alone.

Or is the agency merely looking to help their established clients with a project that might not have potential in NY, but that the client feels very strongly about? Again, to reference my own agent, she publishes most of her books with NY publishers, but she had a project that didn’t fit what NY was looking for, and she published it with a small epress, which turned out to be the perfect home. Which I think is exactly what Waxman is talking about when he says something like:

“I like the opportunity the eBook format presents to the author. There’s a sense of being able to control your own destiny for projects that the big houses don’ t want to bother with. I’ve been at this long enough to trust my own instincts on a book. So, just because a publisher says it’s “too small”, we can now attempt to prove them wrong and still make a go of it.”

And though there are healthy epublishing houses, they don’t exist for every genre or section of publishing, and for some genres a healthy alternative to NY publishing doesn’t exist at all. A lot of romance writers are going “Oh, well. Ellora’s Cave, Samhain, etc.) and not thinking about how that really is just a one part of publishing. Nothing I’ve written for large or small presses would be a good fit at either of those houses. And for these sections of publishing, sometimes the ONLY e-publishing option that exists is primarily focused on reprints (Amazon’s free kindle marketplace and literary classics, for example). And also, in terms of royalties — an agent is going to be comparing the solely (or primarily) ebook market to the ebook royalties of a NY publisher, AND to the options available to books in market segments where you don’t have half a dozen primarily ebook houses vying to attract authors. Royalty rates at romance ebook houses are comparatively high. These other markets that do other kinds of books aren’t necessarily as healthy.

Which is not to say that Waxman’s idea is a good one. Just that it’s not as simple as saying that alternatives already exist. They exist in some genres, but not in others.

I think the slush-pile concern is really coming from the idea that writers may submit to Diversion in hope of it giving them an “in” with the Waxman Agency, really. And while I would never suspect any of the Waxman agents of referring rejectees to Diversion, the fact is the possibility of that happening is there, you know?

I think the comments about an agent going to this epublisher, or any epublisher, are really there simply because we’re talking about an agency that is referring its clients to it epublisher. I’ve never gotten my agent involved in any of my epub work, either; I don’t actually know any writers who do. (My agent did scan my contract to make sure it didn’t conflict with my NY contracts, and we discussed his thoughts on the contract in general and requested a couple of changes, but that’s pretty much it.)

And no, I don’t think an agent would take on a writer whose prospects seem limited to epublishing, but again, the fear that writers would see Diversion as an “in” is there. Also, Diversion is looking for writers who already have an established online/epublishing presence, so I think for one of those writers the temptation to see Diversion as a bigger stepping stone to NY would be difficult to resist. That’s just me, though, and I don’t mean to imply those writers aren’t committed to what they do or are naive or whatever. But I know were I in that position, it would be tempting to see it that way; as maybe a shortcut to representation or something.

It’s my understanding that Diversion is offered to existing clients only if their project hasn’t made it in NY for whatever reason but is one the agent and author both feel strongly could be successful, and that it’s offered in a no-pressure way as simply an option. (Although I admit I’m not sure how that gels with the “we want writers with strong presences and healthy readerships online already.”)

And, like I said in the post, my biggest concern with this isn’t so much what Waxman will or will not do, as with the fact that there’s now a place for scam agents to point to when trying to steal from writers. I have no doubt that everyone at Waxman and Diversion are highly ethical and professional people, but I worry about the example. Kind of like when you hear that one story about that one author who got signed because he drew dozens of pictures in orange crayon and sent one a day to make up his query or something, and the agent or editor thought it was so funny they read the project? And every editor & agent in town just groans because they know they’re going to get a rush of orange-crayon drawings now, because someone insisted it was fine and a good idea.

And yes, you’re exactly right that outside the romance genre there aren’t as many alternatives available for those who want to epublish. But I also think that’s because ebooks are slowly making their way into the mainstream, and pretty much every book is now available as an ebook. I think romance/erotic romance/erotica have done so well in epublishing because those are books people don’t necessarily want to buy at the store or read in public (which has always bothered me, to be honest) so ebooks offer a great alternative. But for, say, a thriller? If you want to read a thriller in eformat you’ll go on the B&N or Amazon website or whatever, and pick one from a publisher or author you already know, you know what I mean? It’s not such a specialist market (I don’t mean romance is a specialist market, it’s a huge market, but there are reasons why some readers prefer to buy them in ebook form aside from their love of the e format). And I do know of a few epresses which publish other genres as well, or small presses which also offer ebooks. So while I see your point and his, I still think it sounded a little strange to say NO epresses out there publish new material, do you know what I mean?

When you say that for some genres there isn’t a healthy alternative to NY, do you mean YA? Or are there some other genres as well? Now that I think of it, I can’t think of any small YA presses at all (I ask about YA because I know that’s what you write). Hmm.

Do you think that as NY moves into epublishing more, those small epresses are going to find themselves losing business?

I will say that I got a comment from Mr. Waxman on my livejournal (the posts are mirrored) and he made it clear that Diversion has, as Theresa said, different management and employees, different shareholders, the whole shebang, and that the agency has no equity in Diversion. Unfortunately he didn’t return to answer my follow-up questions about what exactly the connection is between the two companies, or to give me permission to publish his comment in a new post. I’d intended to do a follow-up, but was waiting for his reply, and then we got into other things here so I never did the follow-up. So I’m doubly glad you replied here, lol, to remind me.